Notice to the municipalities: they cannot demand the municipal capital gain from transmissions prior to November 10, 2021

The General Directorate of Taxes of the transfers of real estate carried out after the ruling of the Constitutional Court of October 26, 2021, and before the urgent legal reform of said tax published in the BOE of November 9 of the same year.

It should be remembered that they established the formula for calculating this local tax, which in practice left the municipalities without the possibility of collecting one of their main tax revenues.

This legal vacuum was not filled until the publication of Royal Decree-Law 26/2021, of November 8, which came to establish , whose validity began on November 10, the day after its publication in the BOE.

This dance of dates could generate doubts about the situation of the transfers of real estate carried out during the days after the sentence and before the entry into force of the legislative modification. However, these are unfounded doubts, since despite the fact that the transfer of a property on such dates would accrue the tax, the liquidation and enforceability of the accrued tax would be impossible after the annulment of the aforementioned precepts of the regulation of taxes. local.

As it could not be otherwise, the tax body has responded in this same sense to a doubt raised by a taxpayer on this issue, affirming with binding character that the declaration of unconstitutionality and nullity of the regulatory precepts of the calculation of the tax makes the liquidation impossible. of the tax until the date in which the state legislator carries out the pertinent modifications in the legal regime of the tax.

Those who have transferred a property between October 26 and November 9 must file the tax return, but not pay it

Consequently, people who have transferred a property between October 26 and November 9, 2021, either through a sale or as a result of an inheritance, will be obliged to present the corresponding tax declaration before the respective municipal treasuries, but They will not be obliged to pay it, nor will the town halls be able to liquidate it or demand its collection.

For all these reasons, after this pronouncement that leaves no room for doubt, neither the municipalities will be able to turn a deaf ear, nor will the affected people have to resign themselves if their council decides to liquidate the capital gains in violation of the law. And, otherwise, there will always be the courts to resolve what should never have been controversial.